23-ORD-307
November 14, 2023
In re: Stanley W. Roberts/Laurel County Detention Center
Summary: The Laurel County Detention Center (“the Center”) did not
violate the Open Records Act (“the Act”) when it did not provide records
that do not exist.
Open Records Decision
On September 7, 2023, inmate Stanley W. Roberts (“Appellant”) submitted a
request to the Center seeking a “copy of [his] disciplinary record” from 2017. Having
received no response by October 12, 2023, the Appellant initiated this appeal.
On appeal, the Center claims never to have received the Appellant’s request.
Under the Act, a public agency “shall determine within five (5) [business] days . . .
after the receipt of any such request whether to comply with the request and shall
notify in writing the person making the request, within the five (5) day period, of its
decision.” KRS 61.880(1). Here, the Center claims it did not receive the Appellant’s
request until this appeal was initiated. The Center notes the address to which the
Appellant sent his request is not the Center’s mailing address. The Office cannot
resolve factual disputes, such as whether a public agency actually received a request.
See, e.g., 23-ORD-071; 23-ORD-005; 22-ORD-216; 22-ORD-148; 22-ORD-125; 21-
ORD-163. Thus, the Office cannot find the Center violated the Act when it did not
respond to a request that it claims it did not receive.
On appeal, the Center also states it possesses no records responsive to the
Appellant’s request. Once a public agency states affirmatively that a record does not
exist, the burden shifts to the requester to present a prima facie case that the
requested record does or should exist. See Bowling v. Lexington–Fayette Urb. Cnty.Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). If the requester makes a prima facie case that
the records do or should exist, then the public agency “may also be called upon to
prove that its search was adequate.” City of Fort Thomas v. Cincinnati Enquirer, 406
S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling, 172 S.W.3d at 341).
Here, the Appellant has not made a prima facie case that the Center possesses
records responsive to his request. Therefore, the Center did not violate the Act when
it did not provide the requested records.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#465
Distributed to:
Stanley W. Roberts #223600
Jamie Mosley
Jodi L. Albright